Petition — Holloway v. Arkansas

RECEIVED

DEC 13 1976

OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

no. 76-5856

WINSTON M. HOLLOWAY,

RAY LEE WELCH and

GARY DON CAMPBELL PETITIONERS

V.

STATE OF ARKANSAS RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

HAROLD L. HALL

PUBLIC DEFENDER

Sixth Judicial District

601 West Second Street

Little Rock, Arkansas 72201

Counsel for Petitioners

SUBJECT INDEX

OPINION BELOW .

JURISDICTION .....,

QUESTIONS PRESENTED .

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE .

REASONS FOR GRANTING THE WRIT .

1. The holding of the Supreme Court of Arkansas

that an attorney representing multiple defendants

must outline to the trial judge confidential

information that constitutes a conflict of

interests between them is judicially unsound as

violating the right of privilege communication

between attorney-client .........

2. The Arkansas Supreme Court's holding that any

violation of constitutional rights of the

defendants after they were paraded through the

court room in front of the prospective jurors

in their jail clothes was corrected by the trial

court when he offered to let them change before

the selection of the jury . ‘eee «

CONCLUSION

APPENDIX "A". . OPINION BELOW .

APPENDIX "B", . PETITION FOR REHEARING

APPENDIX "Cc". . JUDGMENT BELOW

APPENDIX "D". . NOTICE OF APPEAL

PROOF OF SERVICE

mw Re KR SK eS

CASES

Brooks v. Texas, 381 F. 2d 619 . tee «

Commonwealth v. Keeler, 216 Pa. Super 195,

mee @. 6 GBF «cece teeeeves

Eaddy v. People, 115 Colo. 488, 174 P. 2d 7.7

Estelle v. Williams, 425 U.S.

96 8. Ct. 1691... :

Gaito v. Brierly, 485 F. 2d 63.

Hernandez v. Belo, 443 F. 2d 634 .

Miller v. State, 249 Ark. 3, 457 S.W. 2d 848 .

People v. Shaw, 381 Mich. 467, 164 N.W. 2d 7.

People v. Zapata, 220 Cal. App. 2d 903,

34 Cal. Rptr. 171 . 1. «© «© © © ©

Sawyer v. Brough, 358 F. 2d 70 .

State v. Brogile, 226 La. 254, 75 So. 2d 856 .

U.S. ex rel, Watson v. Myers, 250 F. Supp. 292 .

OTHER AUTHORITIES

United States Constitution

Fifth Amendment

Sixth Amendment

Fourteenth Amendment .

28 U.S.C. 1257 (3)

Constitution of Arkansas

Article 2, Section 10

21 Am. Jur. 2d Criminal Law §239 .

, 48 L. Ed, 2d 126,

ao ao Ww @

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO.

WINSTON M. nner

RAY LEE WELCH an

GARY DON CAMPBELL PETITIONERS

V.

STATE OF ARKANSAS RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

4

The Petitioners’, Winston M. Holloway, Ray Lee Welch

and Gary Don Campbell, respectfully pray that a Writ of

Certiorari be issued to review the judgment of th< Supreme

Court of Arkansas, entered in the above entitled case on

September 20, 1976.

OPINION BELOW

The opinion of the Supreme Court of Arkansas is reported

at 260 Ark. 250, 539 S.W. 2d 435. It is responded in Appendix

"A" to this Petition.

JURISDICTION

The opinion of the Supreme Court of Arkansas was rendered

July 19, 1976. That Court entered final judgment upon denying

rehearing September 20, 1976, a copy of which appears in

Appendix "C". The jurisdiction of the United States is invoked

under 28 U.S.C. 1257 (3).

QUESTIONS PRESENTED

1. Whether the three defendants were denied effective

assistance of counsel by the order of the Court appointing

a Public Defender to represent them in the same trial over

their objections?

2. Whether the defendants' trial in jail clothing

destroyed their presumption of innocence so as to deny them

a fair trial?

CONSTITUTIONAL PROVISIONS INVOLVED

CONSTITUTION OF THE UNITED STATES, FIFTH AMENDMENT:

No person * * * shall be compelled in any criminal case

to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law.

CONSTITUTION OF THE UNITED STATES, SIXTH AMENDMENT:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy trial and public trial, by an

impartial jury of the state and district wherein the

crime shall have been committed, * * * and to have

the assistance of counsel for h.s defense.

CONSTITUTION OF THE UNITED STATES, FOURTEENTH AMENDMENT :

* * * nor shall any State deprive any person of life,

liberty, or property, without due process of law * * *,

CONSTITUTION OF ARKANSAS, ARTICLE 2, SECTION 10:

In all criminal prosecutions the accused shall enjoy

the right to a speedy trial and public trial by an

impartial jury of the county in which the crime shall

have been committed; * * * and to be heard by himself

and his counsel.

STATEMENT OF THE CASE

Holloway, Welch and Campbell were each charged with two

counts of rape and one count of robbery which occured in a

restaurant in Little Rock, Pulaski County, Arkansas.

The Public Defender was appointed to represent all three

petitioners over his objections due to a possible conflict of

interest. Each of the petitioners filed a Motion for Severance

and for separate counsel.

On September 4, 1975, the petitioners were brought into

the Pulaski County Circuit Court for trial in their jail

clothes and a jury was selected. On September 5, 1975, the

jury returned a verdict of guilty against each petitioner and

sentenced each of them to life imprisonment on each of the

two charges of rape and to twenty-one years for robbery.

REASON FOR GRANTING THE WRIT

1. THE HOLDING OF THE SUPREME COURT OF ARKANSAS

THAT AN ATTORNEY REPRESENTING MULTIPLE DEFENDANTS

MUST OUTLINE TO THE TRIAL JUDGE CONFIDENTIAL INFOR-

MATION THAT CONSTITUTES A CONFLICT OF INTEREST BETWEEN

THEM IS JUDICIALLY UNSOUND AS VIOLATING THE RIGHT OF

PRIVILEGED COMMUNICATION BETWEEN ATTORNEY-CLIENT.

Petitioners respectfully submit that they were denied

effective assistance of counsel when the Public Defender was

appointed to represent all three of them in their trial after

each had discussed their case individually with him. This

prevented the Public Defender from examining them as to matters

they had confided in with him when they took the witness stand

where it conflicted with information he had received from the

other two when they took the witness stand.

Their rights could have been protected if the trial court

had granted them a severance or appointed them separate counsel.

Counsel for petitioners filed a Motion for Severance for

each of them: Holloway (Tr. 24-25), Welch (Tr. 26-27), and

Campbell (Tr. 28-29).

On August 13, 1975, counsel for petitioners filed a

Motion for Separate Counsel for each petitioner (Tr. 31)

because the petitioners stated that there was a possibility

of a conflict of interest in each of their cases. The Motions

for Severance and Separate Counsel were overruled by the Court

on August 19, 1975 (Tr. 32).

On the date of trial, counsel for petitioners renewed

his metions as follows:

MR. HALL: At this time I would like to renew

that motion on the ground that one or two of the

defendants may testify and, if they do, then I

will not be able to cross-examine them because I

have received confidential information from them.

THE COURT: I don't know why you wouldn't.

Overruled. Save your exceptions (Tr. 121).

The following occurred when the defendants stated that

they wished to testify:

MR. HALL: I am in a position now where I am

more or less muzzled as to any cross-examination.

THE COURT: You have no right to cross-examine

your own witness.

MR. HALL: Or to examine them.

THE COURT: You have a right to examine them, but

you have no right to cross-examine them. The prose-

cuting attorney does that.

MR. HALL: If one takes the stand, somebody needs

to protect the other two's interest while that one is

testifying, and I can't do that since I have talked

to each one individually.

kkKK*

THE COURT: You are overruled. Each defendant

said he wants to testify, and there will be no cross-

examination of these witnesses, just a direct examination

by you (Tr. 239-240).

Counsel for defendants was prevented from cross-examining

each defendant when they testified, and, therefore, was unable

to protect the interests of the other two defendants. The

following took place when the defendant, Welch, testified:

DEFENDANT HOLLOWAY: Your Honor, are we allowed

to make an objection?

THE COURT: No, sir. Your counsel will take

care of any objections.

MR. HALL: Your Honor, that is what I am trying

to say. I can't cross-examine them.

THE COURT: You proceed like I tell you to, Mr.

Hall. You have no right to cross-examine your own

witnesses anyhow (Tr. 255-256).

Petitioners respectfully submit that they were denied

effective assistance of counsel when the Public Defender was

appointed to represent all three of them in their trial after

each had discussed their case individually with him. This

prevented the Public Defender from cross-examining one

defendant on behalf of the other two defendants after he had

received confidential information from the defendant testifying.

The majority opinion of the Arkansas Supreme Court was

in error in holding that the confidential information the

Public Defender received from the defendants should have been

outlined to the judge for him to evaluate its relevance.

An obvious divergence of interest exists between a

defendant who denies his guilt and a co-defendant who not

only confesses his own complicity but also accused the other

of participation in the allged crime, held the court in

Sawyer v. ‘Brough, 358 F. 2d 70, especially where the implicating

confession attempts to cast most of the blame for the alleged

crime onto the “other party." * * * The Court said that under

these circumstances it would be utterly impossible for one

attorney to effectively serve the conflicting interests of

both defendants, since he would be rendered impotent to

effectively assist one by the necessity of protecting the

other.

Where defendant A testified that he had relied on

defendant B's representation that certain property had not

been stolen and where defendant B testified as to a similar

reliance on defendant A's representations, and where both |

defendants denied participation in the burglary and larceny

alleged, the court in United States ex rel, Watson v. Myers,

250 F. Supp. 292, held that there could be no doubt that, the

interests of the co-defendants were conflicting. Pointing

out that defendant A's case would, for example, have required

the impeachment of defendant B's testimony, but that defendant

A was testifying on his own behalf on direct examination by

his and defendant B's joint counsel, the court concluded that

to impeach him simultaneously would be an impossibility for

any advocate.

The Sixth Amendment right to effective assistance of

counsel includes the right to a lawyer who is not obliged to

serve conflicting interests at the same time.

In State v. Brazile, 226 La. 254, 75 So. 2d 856, the

court reversed and remanded a first degree murder conviction

because the trial court failed to appoint separate counsel

for each of the co-defendants, where tie appointed counsel

had argued to the trial court that he was unable to repre-

sent both accused to the degree of efficiency required in a

capital criminal case in that he was unable to plead miti-

gation of one defendant for fear of prejudicing the other.

|

To be properly armed, the attorney must be fully

apprised of the facts upon which his client's case is based.

The client must be able to freely disclose those facts

without fear of his counsel cross-examining him with it for

the benefit of a co-defendant.

2. THE ARKANSAS SUPREME COURT'S HOLDING THAT ANY

VIOLATION OF CONSTITUTIONAL RIGHTS OF THE DEFENDANTS

AFTER THEY WERE PARADED THROUGH THE COURT ROOM IN

FRONT OF THE PROSPECTIVE JURORS IN THEIR JAIL CLOTHES

WAS CORRECTED BY THE TRIAL COURT WHEN HE OFFERED TO

LET THEM CHANGE BEFORE THE SELECTION OF THE JURY.

Before court was formally opened on the first day of

the trial, and while the prospective jurors were present, the.

petitioners were brought into the courtroom and seated at

counsel table in their "jail garb" or clothing. For the

record, the jail clothing was described as matching blue

trousers and blue shirts. One of the defendants couldn't

put his shirt in because his zipper wouldn't close (T. 126).

The following proceedings took place when the Public

Defender moved for a mistrial:

THE COURT: What is your motion?

MR. HALL: Your Honor, I want to ask for a

mistrial now for the defendants being paraded

through the courtroom in their jail uniforms where

all of the prospective jurors were seated.

MR. MUNSON: Your Honor, I think this can

be cured very simply by telling the jury that they

are in custody of the County and these are not

prison clothes.

THE COURT: These are not penitentiary men.

Overruled. Save your exceptions. These boys have

not been convicted. Right now they are presumed

to be just as innocent as you or I. But I don't

even have to let them dress in their civilian

clothes if I don't want to. I can't try a man with

a big number across his chest because they will

know he is in the penitentiary then.

MR. HALL: Save my exceptions to the Court's

ruling.

THE COURT: Your exceptions are saved (T. 119-120).

The petitioner, Holloway, filed a petition while he and

his co-defendants were in chambers on the above motion for

mistrial alleging that he was denied the use of clippers for

a haircut and further "being denied use of personal clothing

and or even clean clothing, creating an unfavorable appearance

by wearing jail uniforms." (T. 121-122).

In Miller v. State, 249 Ark. 3, 457 S.W. 2d 848, the

Arkansas Supreme Court, in reversing the same trial court

held:

“We conclude that a continuance should have

been granted to allow Appellant a reasonable time

in which to make arrangements for civilian attire.

That is because of the rule, supported by a strong

majority, that absent a waiver accused should not

be forced to trial in prison garb."

In the Miller case, supra, the Supreme Court of Arkansas

cited 21 Am. Jur. 2d Criminal Law §239 which stated:

"Since the defendant, pending trial, is still

presumed innocent, he is entitled to be brought

before the court with the appearance, dignity, and

self-respect of a free and innocent man, extept as

the necessary safety and decorum of the court may

otherwise require. He is therefore entitled to

wear civilian clothes rather than prison clothing

at his trial. It is improper to bring him into

the presence of the jury which is to try him, or

the venire from which his trial jury will be drawn,

clothed as a convict."

In the case of Estelle v. Williams, 425 U.S.

os 2

Ed. 2d 126, 96 S. Ct. 1691 (1976), it was held that the State

cannot compel an accused to stand trial before a jury while

dressed in identifiable prison clothes. The failure to make

an objection to the court as to being tried in such clothes

negates the presence of the compulsion necessary tc establish

a constitutional violation. The court went on to say that

"s . Courts have, with few exceptions, determined that an

accused should not be compelled to go to trial in prison or

jail clothing because of the possible impairment of the pre-

sumption so basic to the adversary system."" Gaito v. Brierly,

485 F. 2d 63 (CA 3 1973); Hernandez v. Belo, 443 F. 2d 634

(CA 5), cert. denied, 404 U.S. 897 (1971); Brooks v. Texas,

381 F. 2d 619 (CA 5 1967); Commonwealth v. Keeler, 216 Pa.

Super. 193, 264 A. 2d 407 (1970); Miller v. State, 249 Ark. 3,

457 S.W. 2d 848 (1970); People v. Shaw, 381 Mich. 467, 164

N.W. 2d 7 (1969); People v. Zapata, 220 Cal. App. 2d 903, 34

Cal. Rptr, 171 (1963); cert. denied, 377 U.S. 406 (1964);

Eaddy v. People,.115 Colo. 488, 174 P. 2d 717 (1946).

Gaito v. Brierly, 485 F. 2d 86 (1973) involved a prisoner

who was brought to trial in prison garb consisting of matching

brown denim shirt and pants, work shoes, and a heavy dark

brown corduroy coat. The Court followed Miller, supra, and

stated:

“We accept the majority view that compelling a

defendant to appear before a jury in his prison

clothes unconstitutionally infringes his due process

right to be presumed innocent until proven guilty."

In Brooks v. Texas, 381 F. 2d 619 (1967), the Court held:

. . . that it is inherently unfair to try a ‘

defendant for a crime while he is garbed in his jail

uniform, especially when his civilian clothing is

at hand; no insinuations, indications or implications

suggesting guilty should be displayed before the

jury, other than admissible evidence and permissible

argument."

The Sixth Amendment to the Constitution of the United

States provides:

"In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartiai jury of the State and

peeeweme . «

The Fourteenth Amendment to the VUonstitution of the

United States provides:

". . . no State shall make or enforce any

law which shall abridge the privilege or

immunities of citizens of the United States; nor

shall any State deprive process of law, nor deny

to any person within its jurisdiction equal pro-

tection of the laws."

CONCLUSION

For the above and foregoing reasons, it is respectfully

submitted that the Petition for a Writ of Certiorari should

be granted.

Respectfully submitted,

HAROLD L. HALL

PUBLIC DEFENDER

Sixth Judicial District

601 West Second Street

Little Rock, Arkansas 72201

Attorney for Petitioners

ae

ee

ree tees Ber '

APPENDIX "A"

SUPREME COURT OF ARKANSAS

NO. CR76-25

WINSTON M. HOLLOWAY, RAY

LEE WELCH, AND GARY DON

CAMPBELL, Appellants

Opinion Delivered: July 19, 1976

)

) APPEAL «ROM PULASKI CIRCUIT

) COURT, FIRST DIVISION,

)

)

)

)

V. WILLIAM J. KIRBY, JUDGE

STATE OF ARKANSAS, Appellee AFFIRMED

CARLETON HARRIS, Chief Justice

Appellants, Winston Holloway, Ray Lee Welch, and Gary

Don Campbell, were charged by information with robbery of

the Leather Bottle Restaurant in Little Rock on June 1, 1975,

and with the use of a firearm in committing the offense. The

three men were further charged with the rape of two female

employees of the restaurant. Following a jury trial, all

three men were convicted, with punishment for each set at 21

years imprisonment for the robbery, and life imprisonment for

rape. From the judgment so entered, Holloway, Welch, and

Campbell appeal, arguing several points for reversal.

For convenience, we first discuss the last point which

is simply that the court erred in not giving instructions

for directed verdicts of acquittal. While appellants mits

that any possible error was cured by the giving of the state's

instruction defining an accessory, we proceed to a discussion

of the contention as s*cter of providing background for

other points asserted.

Other than the identity of the perpetrators, the facts

about the robbery-rapes are not disputed. After the closing

of the Leather Bottle on June l, eueund 1:30 - 1:45 A.M., five

employees had remained in the restaurant, and were preparing

to leave. The employees were Donald Henry, Michael Garrett,

David Carroll, and two women. All five were in the restaurant

office in the lower part of the building.

As one of the women (hereafter called "first woman")

began to leave, she heard someone running down the stairs

toward the office. When she looked, she saw a man -- whom

she subsequently identified as appellant Holloway -- coming

down the stairs, brandishing a .45 caliber automatic pistol.

She also saw two other men at the top of the stairs. Holloway

forced her back into the office at gunpoint, where he herded

her and the four other employees against the wall, threatening

to kill them if they moved or opened their eyes. At this

point one of the employees, Donald Henry, saw appellant Welch,

also in the office, rifling the other woman's (hereafter

called "second woman") purse.

While one of the other men remained in the office with

the employees, Holloway grabbed the second woman by the arm

and took her outside, to the stairs, where he forced her to

disrobe, and then raped her. She was thereafter raped a

second time by another man, but was unable to identify the

assailant. Holloway subsequently returned to the office and

asked which employee could open the safe. David Carroll,

manager of the restaurant, said that he could, and Holloway

directed him to do so. While this was occurring, another

of the three men came into the office and forced the first

woman out to the stairs, where he took all the money from

her purse, and then raped her at gunpoint.

Subsequently, after getting all the available cash from

the safe, the three men again made all the employees face

the office wall, eyes closed, while they “shot out" the

telephones with gunshots. The employees were then grouped

into the restaurant's walk-in freezer, which was then locked.

After about an hour -- around 3:30 A.M. -- one of the employees,

Michael Garrett, escaped from the freezer by a small service

opening, and released the others. The police were called,

and the women taken to a doctor.

Because the robbers kept them facing the wall, and

instructed them to keep their eyes closed, none of the

employees were able to identify all three men, The first

woman and Donald Henry identified Holloway and Welch.

Michael Garrett could identify only Holloway. The second

woman and David Carroll identified Holloway and Campbell.

In addition to the testimony of the five employees,

the state also presented evidence of a statement given by

appellant Campbell to two police officers, Paul Plummer and

Jerry Best. The officers testified that on July 4, 1975,

they received information that appellant Campbell was being

held in the city detention center, under the alias Robert

Hill. They removed Campbell from detention, showed him a

warrant charging him with robbery, and began taking him to

an interrogation room. At this point both officers testified

Campbell spontaneously said, "I haven't raped anyone. If will

tell you about the robbery." The officers said that they

cautioned Campbell to stay silent, because he had not been

warned of his rights, but that he immediately volunteered

the satie statement again.

Thereafter Campbell was warned of his constitutional

rights, and both officers stated that he signed a "rights

waiver," which was admitted into evidence. Plummer and Best

testified that Campbell then told them that he, Welch and

Holloway had robbed the establishment. The officers said

that Campbell admitted complicity in the robbery, but denied

raping anyone, stating that he had held a rifle and had stood

at the top of the stairs. In the oral statement Campbell

said that the men had stolen about $2,000.00, and that his

share of the money was approximately $700.00. It is apparent

that, aside from the concession, the court did not err in

refusing to instruct directed verdicts of acquittal.

Appellants contend that the trial court “erred in

refusing to grant a mistrial when the defendants were brought

in court before the jury in their jail uniforms in violation

of their rights under the Sixth and Fourteenth Amendments to

the Constitution." Before the trial began, counsel for

appellants moved for a mistrial, alleging that appellants

were "paraded through the courtroom in their jail uniforms

where all the prospective jurors were seated." The record

does not reflect whether any of the prospective jurors ever

saw appellants prior to the trial. Nor does the record re-

flect the exact attire of the men except that they were

dressed in matching blue trousers and blue shirts. Certainly,

they were not wearing "prison garb," for they were not in

prison.

Appellants' argument has no merit, for several reasons.

First, appellants rejected, twice, the trial court's offer

to allow them to change clothes. The trial court gave

appellants this opportunity before the trial began and before

the actual selection of the jury. Therefore, appellants may

be deemed to have waived the point. Finally, in the recent

case of Estelle v. Williams, U.S. , (May 3,

1976), the U. S. Supreme Court held that a defendant's consti-

tutional rights were violated only when he was compelled to

wear identifiable prison clothing at his trial. The court

stressed that such attire must be "distinctive" and "identi-

fiable."

It is asserted that the court erred in refusing to

grant appellants' motion for a severance, and in not appointing

separate counsel. Prior to the trial, all three appellants

moved for severance, and for appointment of separate counsel.

As grounds for severance, each asserted that witnesses might

be called by one of the defendants to testify against the

other defendants, that a joint trial would deprive each

appellant of his rights to call the co-defei.dants as wit-

nesses, and that a joint trial would prevent counsel from

commenting on the failure of any co-defendant to testify,

if such occurred. The motion for separate counsel alleged

only that the appellants had stated to counsel that "there

is a possibility of conflict of interest in each of their

cases."" The motions were denied.

Appellants’ counsel renewed the motion for separate

counsel at the trial, stating that "one or two of the

defendants may testify and, if they do, then I will not be

able to cross-examine them because I have received confi-

dential information from them." The trial court denied the

motion.

First, let us review the contention that a severance

should have been granted. Let it be pointed out that

appellants demonstrate no prejudice from the joint trial.

As previously noted, three grounds were alleged in the

motion for severance. None of these grounds materialized

during the trial. Moreover, the trial court properly

limited the use of Campbell's statement against co-defendants

by deleting all references by name to the other two defendants,

and substituting the words, "two other people" and "two other

fellows." This procedure fully complied with this Court's

requirement. Gammel and Spann v. State, 259 Ark.

531 S.W. 2d 474 (Jan. 19, 1976); Stewart and McGhee v. State,

257 Ark. 753, 519 S.W. 2d 733, cert. denied, 423 U.S. 859.

In fact, it was counsel for appellants who stated before the

jury that the confession implicated the two co-defendants.

As this court has held numerous times, "[t)he granting

of a severance is within the sound discretion of the trial

court." Keese and Pilgreen v. State, 223 Ark. 261, 265 S.W.

2d 542; Vault v. Adkisson, 254 Ark. 75, 491 S.W. 2d 609. We

| ae | * a a»

Next, let us review the point that separate counsel

should have been appointed. The applicable law was discussed

in Trotter and Harris v. State, 237 Ark. 820, 377 S.W. 2d 14,

cert. denied, 379 U.S. 890. In a lengthy discussion the

court reviewed the relevant precedents, and held that no

conflict of interest had arison because counsel represented

the two co-defendants. The court stated:

"Both men were charged with the same offense,

which grew out of the same occurrence. The

only evidence, which in any manner could be

said to indicate a conflict of interest, was

the statement of Harris made to the sheriff

that, though he drove the car, he did not

actually rape the prosecuting witness. This

might indicate that he was only an accessory,

but the distinction between principals and

accessories was abolished in this state in

1936. See Ark. Stat. Ann. §41-118 (1947).

Accordingly, even under this statement, if

Harris were guilty, he was guilty as a prin-

cipal."

The court also noted that the trial court had correctly

limited the use of the statement, and that both Harris and

Trotter received the same sentence, indicating that neither

had been prejudiced as against the other by the statement.

Thus, the instant case presents facts identical in

important respects to Trotter. Appellants "were charged

with the same offense, which grew out of the same occurrence."

Although Campbell's statement did deny any involvement in the

rapes, as did the statement in Trotter, this denial had no

effect on his guilt as a principal. The trial court likewise

limited the use of the statement against the co-defendants,

and all appellants did, in fact, receive the same sentence.

Under the Trotter standard, therefore, no conflict of interest

has been shown.

This conclusion is in accordance with the overwhelming

majority of courts that have ruled upon the issue -- i.e.,

the record must show some material basis for an alleged con-

flict of interest, before reversible error occurs in single

representation of co-defendants.+ In a particularly definitive

case, United States v. Williams, 429 F. 2d 158, cert. denied,

400 U.S. 947, the Eighth Circuit stated:

"It has been firmly established that joint

representation of codefendants is not per se

violative of the Sixth Amendment. [Citations

omitted.] Expressed another way, no reversible

error is committed by the district court in

assigning a ane attorney tc represent two

or more codefendants in a pending criminal

action, absent evidence of an actual conflict

of interest or evidence pointing to a sub-

stantial ge of a conflict of interest

between the codefendants. [Citations omitted. ]

Where courts have found such evidence on the

appellant record, they have not hesitated to

direct a reversal for a new trial. [Citations

omitted. ]

".,..'T)here is nothing pointing to an actual

or ubstantial possibility of a conflict of

interest between appellant and his codefendant,

Brinkley. We need go no further. A reversal

here would be tantamount to a holding that

joint representation is illegal per se, a

result not mandated by the Sixth Amendment,

Glasser [v. United States, 315 U.S. 60], or

its progeny."

Similarly, in United States v. Gallagher, 437 F. 2d 1191, the

Seventh Circuit, confronted with the same argument, found no

conflict of interest, and stated:

"The existence of a conflict of interest, to

warrant [reversal], must be founded on some-

thing more than mere speculation or surmise.

We perceive nothing in this record which

demonstrates the existence of any real con-

flict of interest between the defendants."

Research discloses at least thirty-two jurisdictions that

adhere to this standard, requiring some factual demonstration

of a conflict of interest.

1

In American-Canadian Oil and Drilling Corp. v. Aldridge

and Stroud, 237 Ark. 407, 373 S.W. 2d 148, this court expressly

held that a mere possibility of conflicting interest does not

disqualify an attorney per se. The court stated:

"A mere possibility that different interests

represented by an attorney might develop a

conflict is not sufficient to disqualify him."

The Court held that the interests must be actually adverse.

By contrast, a small minority of jurisdictions (five)

appear to have adopted a much more liberal standard first

applied by the District of Columbia Court of Appeals in

United States v. Lollar, 376 F. 2d 243. Under the Lollar

rule, the trial court bears the burden of investigating any

potential conflict of interest, and of determining the need

for separate counsel, whenever any “informed speculation"

of conflict exists. Although this rule was first announced

almost a decade ago, very few jurisdictions have found it

persuasive. For example, in United States ex rel. Robinson

v. Housewright, 525 F. 2d 988 (Nov. 26, 1975), the Seventh

Circuit expressly rejected the Lollar standard for appoint-

ment of separate counsel. That court stated that "the

primary responsibility for the ascertainment and avoidance

of conflict situations must lie with the members of the bar,"

and that "it is incumbent upon the defendants to demonstrate,

with a reasonable degree of specificity, that a conflict of

interests actually existed at trial." Likewise, in State v.

Jeffrey, 515 P. 2d 364, the Montana Supreme Court refused to

adopt the Lollar rule, adhering instead to the majority re-

quirement "that there be a showing of a conflict of interest

to the prejudice of the accused, and that this conflict must

be more than a mere conjecture as to what might have been

shown."

Although this court referred to the "informed speculation"

rule when reversing a conviction in Shelton v. State, 254 Ark.

815, 496 S.W. 2d 419, it cannot be presumed that Shelton

overruled Trotter and Harris v. State, supra. In fact, the

Shelton opinion does not discuss, or even mention Trotter.

In Shelton, there were no co-defendants. A witness, Joe

Hilderbrand, had been a defendant but the case against him

had been dismissed. It was contemplated that the state might

call Hilderbrand as a witness and counsel for Shelton stated

that he had represented Hilderbrand, had received confidential

information from him, and would not feel free in cross-

examining Yilderbrand if he were called to testify. A principal

difference in that case and the one at bar is that Shelton

never did take the stand and testify.

A recent case, United States v. Jeffers, 520 F. 2d 1256

(7th Cir.), cert. denied, 96 S. Ct. 805 (Jan. 13, 1976),

discusses the proper procedure to be followed when an alleged

conflict of interest may arise because counsel possesses con-

fidential information. The opinion was written by Justice

(then Judge) John Paul Stevens. In Jeffers, counsel for

multiple defendants asserted that he was unable to fully

cross-examine a prosecution witness whom his law firm had

previously represented. Counsel allged that because of this

prior representation, he was in possession of confidential

information that created a conflict of interest, limiting

his effectiveness in representing the Jeffers defendants.

He requested that the trial court permit him to withdraw

from the case because of the presumed conflict. The trial

court held, however, that no actual showing of a conflict

had been made, and that therefore counsel would not be

permitted to withdraw.

On appeal of the ensuring convictions, the Seventh

Circuit in Jeffers approved the trial court's ruling. Judge

Stevens first noted that counsel "made no effort to disclose

“he privileged information to the court in camera to enable

‘+e court to evaluate its relevance." Reviewing the scope

of the attorney-client relationship, the court further stated

that "(t]he risk that an item of confidential information

might be misused does not create a conflict of interest which

disqualifies an attorney from conducting any cross-examination

at all." The court concluded:

"Thus, if defense counsel was concerned that

he might be using confidential information

improperly, he could have outlined the nature

of the information to the judge and, if

necessary, made an in camera disclosure to

him. On the basis of such a disclosure it

might have become apparent that the privilege

was either inapplicable or had been waived by

the witness. Or, it might have been clear

that the information was not usable for other

evidentiary reasons."

In the instant case, no disclosure of the nature of the

information acquired was outlined to the judge. After all,

without any reflection on present counsel, a very honorable

man and competent lawyer, requiring the granting of a motion

to appoint separate counsel purely on the basis of a motion

stating that confidential information had been received from

the defendants, might well eventuate in an imposition on the

court and could result in the mandatory appointment of addi-

tional counsel in every case where multiple defendants were

involved; the contingencies set forth in Jeffers might well

dispose of the issue.

Summarizing, a review of the record establishes that

no prejudice resulted, in fact, to appellants. As the state

correctly points out, all three appellants voluntarily took

the stand, against the advice of counsel, and denied any in-

volvement in the crime. Most important, however, none of the

appellants attempted to incriminate any of the others.

Campbell completely denied making the statement to the officers,

and denied even knowing Holloway at all. Holloway and Welch

both stated that they knew nothing about the case. Thus, the

actual testimony adduced at trial by appellants presented no

conflict of interest whatsoever. Accordingly, the record

presents no basis from which this court can find that separate

counsel should have been appointed. This conclusion agrees

with the holdings of other courts in similar fact situations.

People v. Spencer, 206 N.W. 2d 733 (Mich. App.); Davis v. State,

201 S.E. 2d 345 (Ga. App.).

a a

Appellants assert that the trial court erred by

admitting into evidence the "rights waiver" allegedly signed

by Campbell, and the oral statement allegedly made by him to

police. Campbell denied signing the form and making the

statement, contending that he was under the influence of

alcohol and narcotics at the time.

In reviewing a trial court's ruling on the admissibility

of a statement, this court makes an independent determination

based on the totality of the evidence, but reverses the trial

court only when its ruling is clearly against the preponderance

of the evidence. Degler v. State, 257 Ark. 388, 517 S,W. 2d

515. The ruling of the trial court in the instant case

clearly is not against the preponderance of the evidence.

Both officers who were present during Campbell's interrogation

testified that he was not visibly under the influence of

drugs or alcohol, that he could walk and talk normally, and

appeared sober. Both officers said that they could smell

alcohol on Campbell, and gave him a ">reathalyzer" test, but

that Campbell's mental faculties were not apparently impaired.

The conflicting testimony posed an issue of credibility for

the trial court, and from the appellate record it cannot be

said that error was committed in admitting the rights form

and oral statement.

Appellants argue that the trial court erred by refusing

to allow their counsel to ask one of the officers who had

interrogated Campbell about the statutory presumption on

blood alcohol content. The officer testified that a "breath-

alyzer" test given to Campbell "showed that he registered

point 16 percent blood alcohol." Appellants’ counsel then

asked, “And what is the percentage reading for a drunk?"

The trial court at that point sustained the state's objection

to the question.

The prima facie presumption of intoxication set forth

in Ark. Stat. Ann. §75-1031.1 (Repl. 1957) applies solely to

individuals who are charged with the offense of driving a

vehicle while intoxicated. As the state points out, the

statute is relevant solely to the issue of an individual's

ability to drive safely -- his reactions, coordination, and

capacity to operate an automobile. ‘Appellants cite no

authority that a statute with such a limited purpose should

be applied to the vastly different issue of a defendant's

mental ability to comprehend his constitutional rights and

to give a statement. To the contrary, see Wilson v. Coston,

239 Ark. 515, 390 S.W. 2d 445; Hoffman v. State, 70 N.W. 2d

314 (Neb.); People v. Leis, 213 N.Y.S. 2d 138; State v.

Aarhus, 128 N.W. 2d 881 (S.D.). The argument, we think, is

untenable.

Finally, it is asserted that "The court erred in per-

mitting officers to testify that they took a picture of

defendant, Campbell, and a warrant fcr his arrest when they

went to the jail to talk to a man by the name of Robert Hill."

During the examination of Jerry Best, one of the officers

who had questioned Campbell, Best testified that he and

Plummer had taken "a picture of Campbell and a warrant that

we had for him" when they went to retrieve him from the

detention center.” Appellants’ counsel objected and requested

a mistrial, which the trial court denied. Appellants contend

that the refusal of a mistrial was error, because the officer's

testimony allegedly created "an impression to the jury that it

was a mug shot of the defendant and could lead them to believe

that he had a long record."

2officer Plummer had received information that a man

who had given his name as Robert Hill was being held in the

detention center, but that "Hill" was actually Gary Don

Campbell. Campbell had been previously convicted of an

offense and the officers took his picture to the detention

center as a matter of being positive that “Hill” and Campbell

were one and the same.

“2 ade a

—

It must be noted that the officer used the word, “picture,"

and made no reference to a "mug shot." The word used by the

officer seems in no way prejudicial to appellants; further,

no request was made for an admonition to the jury. The appli-

calbe standard is stated in Gammel and Spann v. State, 259

Ark. , 531 S.W. 2d 474:

"Declaring a mistrial is an.extreme remedy

which should be granted only where there

has been an error so prejudicial that justice

could not be served by continuation of the

trial. [Citation omitted.] It should not

be granted when any possible prejudice could

be removed by an admonition to the jury.

[Citation omitted.] It was certainly not

called for in this case. Appellants did not

seek an admonition to the jury to disregard

the questions or any of their implications."

Still further, Plummer had already earlier testified to

the same facts without objection, and any possible error would

be rendered harmless.

All objections made during the trial by appellants have

been examined and found to contain no merit. Finding no

reversible error on the whole case, the judgment is affirmed.

It is so ordered.

George Rose Smith, Fogleman & Byrd, JJ., dissent.

SUPREME COURT OF ARKANSAS

WINSTON M. HOLLOWAY, RAY

LEE WELCH, AND GARY DON

CAMPBELL, Appellants

No. CR76-25

Opinion Delivered: July 19, 1976

V.

STATE OF ARKANSAS Dissent

CONLEY BYRD, Associate Justice

I would reverse this case because the trial court forced

the public defender to represent all three defendants after he,

in accordance with American Bar Association Standards For

Criminal Justice, The Defense Function §3.5(a)(1971), informed

the court that, because of a confidential communication from

his clients, there was a conflict of interest among them. The

record with respect to the conflict issue shows the following:

"MR. HALL: At this time I would like to renew that

motion on the ground that one or two of the

defendants may testify and, if they do, then

I will not be able to cross-examine them be-

cause I have received confidential information

from them.

THE COURT: I don't know why you wouldn't. Overruled.

Save your exceptions.

MR. HALL: I am in a position now where I am more

or less muzzled as to any cross-examination.

THE COURT: You have no right to cross-examine

your own witness.

MR. HALL: Or to examine them.

THE COURT: You have a right to examine them, but

you have no right to cross-examine them. The

prosecuting attorney does that.

MR. HALL: If one takes the stand, somebody needs

to protect the other two's interest while

that one is testifying, and I can't do that

since I have talked to each one individually.

e**

THE COURT: You are overruled. Each defendant

said he wants to testify, and there will

be no cross-examination of these witnesses,

just a direct examination by you."

The record shows that all defendants testified in their

own behalf. The following took place when the defendant,

Welch, testified:

"DEFENDANT HOLLOWAY: Your Honor, are we allowed

to make an objection?

THE COURT: No, sir. Your counsel will take care

of any objections.

MR. HALL: Your Honor, that is what I am trying

to say. I can't cross-examine them.

THE COURT: You proceed like I tell you to, Mr.

Hall. You have no right to cross-examine

your own witnesses anyway."

The oath administered to lawyers when they receive their

license to practice law before this Court requires each lawyer

to affirmatively answer that "I will maintain the confidence

and preserve inviolate the secrets of my client... ." isci-

plinary Rules DR 4-101(B) of the Code of Professional Respon-

sibility, adopted by this Court provides:

"(B) Except when permitted under DR 4-101(C),

a lawyer shall not knowingly:

(1) Reveal a confidence or secret of

his client.

(2) Use a confidence or secret of his

client to the disadvantage of the

client.

(3) Use a confidence or secret of his

client for the advantage of himself

or of a third person, unless the

client consents after full disclo-

sure." .

In the American Bar Association Project on Minimum

Standards for Criminal Justice, Providing Defense Services,

we find the following with reference to the professional

independence of appointed defense counsel.

"1.4 Professioral independence.

The plan should be designed to guarantee the

relationship between lawyer and client. The plan

and the lawyers serving under it should be free

from political influence and should be subject to

judicial supervision only in the same manner and to

the same extent as are lawyers in private practice.

counsel system igs selected, it should be governed

Such a board. The board should have the power to

establish general Petey for the operation of the

e

Plan, cons se standards and in keeping

with the standards of professional conduct. The

board should be Precluded from interfering in the

conduct of Particular casesg..

Commentary

a. Integrity of the Professional relation

A system which does not guarantee the integrity

of the Professional relation is fundamentally de-

have the same freedom of action as the lawyer whom

the person with sufficient means can retain. In-

equalities of this nature are seriously detrimental

to the fulfillment of the goals of Providing counsel.

ey are quickly preceived by those who are being

provided representation and may encourage cynicism

toward the justness of the legal system and, ulti-

mately, of society itself. Much of the dispute

concerning the merits of various systems has

centered on their Capacity to guarantee professional

independence. The study made by the Special Committee

of the Association of the Bar of the City of New York

and the National Legal Aid Association concluded that

the necessary independence could be guaranteed under

any type of system, from pebite defender to assigned

defense counsel to his client has been emphasized in

Previously adopted Standards."

To sustain its illogical position that "the record must

Show some material basis for an alleged conflict of interest,

before reversible error occurs in single representation of

co-defendants," the majority mistakenly rely upon Trotter and

Harris v. State, 237 Ark. 820, 377 S.W. 24 14 (1964) ; United

States v. Williams, 429 F. 24 158 (8th Cir. 1970); United

States vy. Gallagher, 437 F. 2d 1191 (7th Cir. 1971); United

States ex re] Robinson v., Housewright, 525 F. 2d 988 (7th

Cir. 1975); State Vv. Jeffrey, Mont.

» 315 P. 24

364 (1973); and United States y. Jeffers, 520 F. 24 1256

(7th Cir. 1975).

Oe 2 ee

wae

In Trotter and Harris v. “tate, supra, the issue

not raised in the trial court. The opinion points out that

during an in camera hearing in the trial court to determine

if Trotter and Harris should take the witness stand that

both parties expressed their approval of appointed counsel

and of his efforts during the trial. In the absence of any

showing of a conflict in the record, this court properly

held that there was no merit to the conflict of interest

contention. In the case before us the objection was raised

in the trial court and at every opportunity in keeping with

the Code of Professional Conduct.

In United States v. Williams, supra, upon which the

majority relies, the defendants were making a post-conviction

attack upon their guilty pleas. The record there shows that

both defendants had escaped from the Lowa prison at the same

time and that they were arrested together. aes they were

brought before Judge Duncan for arraignment the appointed

t.

counsel raised the possibility of a coaflict of interes

"At this time, Your

In

doing so appointed counsel stated: _

c

Honor, I know of no conflict but I am saying that the con

we re

may arise in the future."' When Judge Duncan asked, “Is the

anything, any statement that come from [the defendants] that

indicates a conflict of interest?" The attorney responded,

“Not at the present time." Thus the Eighth Circuit was

correct in asserting that the post-conviction conflict of

holding

interest assertion was without merit. However, such

is not authority for saying that a conflict arising from a

confidential communication to appointed counsel should be

denied when the matter is brought to the attention of the

court before trial. In fact the very emphasis of the court

to the proposition that the motion was not made upon a con-

fidential communication would indicate that the court would

require representation by different counsel should that

situation arise.

In United States v. Gallagher, supra, the court had

appointed separate counsel for each defendant. Subsequently,

the defendants employed single counsel to represent both.

When the evidence showed that one of the defendants was the

dominant member of the conspiracy, the lawyer suggested to

the court that he didn't know, “whether I should let Tom

Gallagher go at this time and concentrate on the lack of

evidence against Neil Gallagher or whether I should concen-

trate on the [evidence] against Neil and pound that in front

of the jury." The court there pointed out that the existence

of a conflict of interest was left to only speculation and

surmise. There was no contention in that case that the

conflict arose from a confidential communication. In fact,

it would appear that the motion was more in the nature of a

defense ploy.

The majority's reliance upon United States ex rel

Robinson v. Housewright, supra, is totally misplaced. There

Robinson had entered a bargained plea of guilty to murder

and received a reduced sentence. He sought to raise the

conflict of interest of lk s appointed counsel in a post-

conviction hearing. However, the appointed counsel testified

that he knew of no conflict of interest. In pointing out

that Robinson was entitled to no relief the court stated:

"...The record discloses that the court appointed

attorney had not ascertained the presence of a

disabling conflict. Nor does anything suggest

that he would not have brought to the attention

of the court the existence of such a conflict..."

{citing §3.5(a) ABA Standards for Criminal

Justice, supra, ]

The majority's reliance upon State v. Jeffry, supra,

is not supported by the facts there involved nor the

reasoning of the Montana Court. Both defendants there were

tried together and as pointed out by the court:

oT

“er. ~

“Both hired and retained the same counsel to

represent them in all preliminary matters and at

trial. Counsel was not appointed, or imposed upon

either of them--he was retaine’ by the defendants.

Prior to this appeal neither ot the defendants had

claimed he was denied effective counsel, but now,

after conviction, they each contend that since

a were represented by the same counsel they

each were denied their right to effective counsel."

The Montana Court first stated that in determining the conflict

of interest issue, it followed the reasoning set forth in

Kruchten v. Eyesman, 406 F. 2d 311 (9th Cir. 1969), which

provides:

"In considering the legal aspect of the conflict

of interest claim, we start with the premise that if

a conflict of interest actually exists the court will

not weigh or determine the degree of prejudice which

may result before granting relief. Glasser v. United

States, 315 U.S. 60, 62, S. Ct. 457, » BG.

However, until an actual conflict is shown

to exist or can be reasonably foreseen an attorney

may, in good faith, represent both defendants."

The reason for denying relief when the conflict issue is raised

for the first time on appeal was stated by the Montana Court

as follows:

"...The whole problem directs itself ultimately

on appeal to the adequacy or inadequacy of defense

counsel and in the eyes of this court such adequacy

or inadequacy of counsel should not be tested by

the greater sophistication of appellate counsel who

did not try the case, nor should the test by made

on the basis of applying different defense tactics,

perhaps of doubtful efficiency, after leisurely

studying the transcript of the trial..."

Of course in the case before us we have the statement

of the Public Defender that a conflict would arise in the

event the defendants took the witness stand in their own

behalf. He made that statement because of confidential

communications he had received from his clients.

Finally the majority make much of the fact that the

now Justice John Paul Stevens wrote the opinion in United

States v. Jeffers, 520 F. 2d 1256 (1976). That case does

not even involve a conflict of interest arising from the

representation of co-defendants. There retained counsel,

Cohen of the law firm of Cohen & Thiros, represented a

number of defendants termed "The Family" who were indicted

for a "highly-structured and on-going narcotics distribution

net work in Gary, Indiana."" On the sixth day of trial the

government brought forth as a witness one James Berry. At

that time Cohen informed the court that Berry had previously

been represented by one of his law partners in a prior state

court homicide case. Cohen admitted that his law firm did

not then represent Berry, that he did not personally know

Berry, and that he personally had had no confidential communi-

cation from Berry. Before concluding that no conflict of

interest was shown that would effectively prevent the cross-

examination of witness Berry, Judge Stevens emphasized:

",...We also emphasize at the outset that

this is not a case involving an existing personal

relationship between Cohen and the witness Berry.

Consequently, the numerous cases involving an

ongoing relationship between an adverse witness

and a lawyer are inappropriate."

In a foot note following the above statement it is stated:

“The courts have frequently held that the existence

of such a relationship, with the inherent hesitancy

of counsel to completely cross-examine a current

client, creates a very real conflict of interest

and requires a mistrial if the conflict is disclosed,

or a new trial, if the conflict is discovered only

later, see Castillo v. Estelle, 504 F. 2d 1243

(Sth Cir. 197%) ”

Our own case of Shelton v. State, 254 Ark. 815, 496 S.W.

2d 419 (1973), falls in the category of the cases mentioned

by Justice Stevens in the foot note, supra.

The majority's assertion that the Public Defender should

tell all of his confidential communications to the trial judge

to protect some of his clients could prove very embarrassing

to the public defender's other clients if the jury should

become hung on the amount of the punishment and leave the

punishment to be fixed by the trial court. Under the majority

opinion appointed counsel can never meintein inviolate the

confidence of his clients. _

For the reasons stated I respectfully dissent.

George Rose Smith and Foggleman,JJ., join in this dissent.

APPENDIX "B"

IN THE SUPREME COURT OF ARKANSAS

WINSTON M. HOLLOWAY,

RAY LEE WELCH, and

GARY DON CAMPBELL APPELLANTS

vs. CRIMINAL NO. CR-76-25

STATE OF ARKANSAS APPELLEE

PETITION FOR REHEARING

Come now the Appellants, Winston M. Holloway, Ray Lee

Welch and Gary Don Campbell, and respectfully petition this

Court to grant a rehearing of their appeal and to thereafter

reverse the judgment of the lower Court and for grounds for

their petition would respectfully assert the following errors

contained in the opinion of this Court delivered on July 19,

1976: |

I.

The majority opinion erred in «tating that the record

did not reflect that the jurors ever saw the appellants in

their jail wiforms. The Prosecuting Attorney told the Court

that this could be cured by telling the jury that they were

in custody of the county aid that these were not prison

clothes (T. 119-120). The majority opinion of this Court

further erred by holding that if they wanted to waste time

by letting them go get dressed they could, but this was after

they had been paraded through the courtroom. It was further

error to hold that county jail clothes were not prison garb.

Miller v. State, 249 Ark. 3, 457 S.W. 2d 848 (1970); Estelle v.

Williams, 19 Cr. L. 3061, U.S. Supreme Court, May 5, 1976;

Gaito v. Brierly, 485 F. 2d 63 (CA3 1973); Brooks v. Texas,

381 F. 2d 619 (1967).

Il.

The majority opinion erred in holding that a severance

should not have been granted to each appellant since counsel

for appellants did not inform the trial judge of the nature

of the confidential information he had in order for the trial

judge to rule on the Motion to Sever. To reveal confidential

information received from an attorney's client to the trial

court would necessitate a record being made for this Court to

determine if the trial judge abused his discretion in making

a ruling on a Motion for separate counsel. The majority

opinion of this Court destroys any confidence a client may

have to his attorney not to violate a privileged communication.

The petitioners hereby adopt the dissenting opinion of this

Court in their Petition due to the limited amount of space

allotted to them in this Petition.

WHEREFORE, Appellants pray that said appeal be reheard

by this Court, that upon such rehearing that the judgment of

the Pulaski County Circuit Court be reversed and the case

remanded.

Respectfully submitted,

Nonerd F. Bord

PUBLIC DEFENDER

Sixth Judicial District

CERTIFICATE

Comes Harold L. Hall, Attorney for Appellants, Winston M.

Holloway, Ray Lee Welch, and Gary Don Campbell, and states that

the above and foregoing Petition for Rehearing is not filed for

the purpose of delay and it is his belief that there is merit

abt ik Hae

in the Petition.

a ee

CERTIFICATE OF SERVICE

I hereby certify that I have served a true and correct

copy of the above and foregoing Petition for Rehearing on the

Hon. Jim Guy Tucker, Attorney General, State of Arkansas, at

his office in the Justice Building, Little Rock, Arkansas,

this 3rd day of August, 1976.

Ahenee me TS

HAROLD L.

APPENDIX "C"

STATE OF ARKANSAS

In the Supreme Court )

BE IT REMEMBERED,

SCT.

That at a term of the Supreme Court

of the State of Arkansas, begun and held at the Court Room

in the City of Little Rock, on the 4th day, being the first

Monday of October, A.D.

following proceedings, to-wit:

1975, amongst others were the

On the 20th day of September, A.D. 1976, a day of said term

State of Arkansas

Winston M. Holloway, Ray Lee)

Welch and Gary Don Campbell )

)

Appellants ) Appeal from Pulaski

) Circuit Court

No. CR 76-25 ; First Division Circuit

)

)

Appellee

Petition for rehearing denied.

IN TESTIMONY, That the above is a true

copy of the order of said Supreme Court,

rendered in the case therein stated, I,

JIMMY H. HAWKINS, Clerk of said Supreme

Court, hereunto set my hand and affix

the Seal of said Supreme Court, at my

office in the city of Little Rock,

this 9th day of December, A.D. 1976.

JIMMY H. HAWKINS

Clerk

By Robin Henderson

D.C.